Commentary

Joint report published on EU and UK citizens’ rights

On 8 December 2017, the European Commission and UK Government set out an agreement in principle on a number of areas including the rights of EU citizens after the UK leave the EU.

The background
In a letter dated 29 March 2017, the Prime Minister formally commenced the process for leaving the EU by notifying the President of the European Council of the UK’s intention to withdraw from the EU, in accordance with Article 50 of the Treaty on European Union (TEU) (as inserted by the Treaty of Lisbon).

On 30 March 2017, the Government then published a White Paper on the Great Repeal Bill entitled ‘Legislating for the United Kingdom’s withdrawal from the European Union’. This sets out how it intends to legislate for the withdrawal from the EU and explains that EU law is to be converted into domestic law on the date the UK formally leaves the EU:

‘The same rules and laws will apply on the day after exit as on the day before.’

On 31 March 2017, the European Council issued draft guidelines setting out the overall position and principles the EU will pursue and defining the framework, from the EU’s perspective, for negotiations under Article 50 TEU.

In June 2017 a general election was held in the UK resulting in a hung parliament.

Formal negotiations with the EU then commenced.

The joint reportOn 8 December 2017, the European Commission and UK Government set out an agreement in principle on a number of areas including the rights of EU citizens after the UK leaves the EU. Importantly, the EU declared that the agreement reached amounted to ‘sufficient progress’ such that phase 2 – talks on the framework of a trade deal and other future relationship issues – can begin.

The joint report and accompanying technical note make it clear that ‘nothing is agreed until everything is agreed’ and it should be noted that the proposals could change before a final agreement is reached. The final agreement will be set out in a Withdrawal Agreement, to be enshrined into UK legislation by an Implementation Bill.

The report reflects some of the proposals made by the UK in its policy paper, which we considered here.

The jurisdiction of the Court of Justice of the European Union (CJEU) has been a sticking point in these negotiations. The report sets out that UK courts will have regard to CJEU rulings and can ask questions of interpretation for up to eight years after the UK leaves the EU. An independent body will monitor the implementation and application of citizens’ rights. Its scope and functions have yet to be agreed.

The differences
There are some key differences between the two positions and further agreements will need to be made.

In particular, the EU Commission would like the independent body to receive complaints by EU citizens and also initiate legal actions before UK courts on their behalf. Similarly, the EU Commission considers that future family members, that is, those partners and spouses who marry, or enter a durable relationship with, an EU citizen after the UK leaves the EU, should be able to benefit from the same rules as family members. Furthermore, agreement needs to be reached on free movement and other rights conferred by EU law once the UK has left the EU – will these come to an abrupt end or continue and, if so, for who?

Please note that an already fairly complex field of law is about to become even more complicated. We recommend that advice on complicated cases is sought as quickly as possible.

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